[Federal Register Volume 82, Number 56 (Friday, March 24, 2017)]
[Rules and Regulations]
[Pages 14992-14995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05894]


=======================================================================
-----------------------------------------------------------------------

FEDERAL HOUSING FINANCE AGENCY

12 CFR Parts 1207 and 1223

RIN 2590-AA87


Minority and Women Outreach Program

AGENCY: Federal Housing Finance Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Housing Finance Agency (FHFA) is prescribing this 
final rule to establish its minority and women outreach program (MWOP), 
pursuant to the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989 (FIRREA); the Federal Housing Enterprises 
Financial Safety and Soundness Act of 1992 (Safety and Soundness Act); 
and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 
2008 (Dodd-Frank Act). This final rule also redesignates the current 
Minority and Women Inclusion (MWI) regulation (``Minority and Women 
Inclusion Final Rule,'' ``MWI Rule,'' or ``2010 Final Rule''), in the 
Code of Federal Regulations to subchapter B of FHFA's regulations.

DATES: Effective date: March 24, 2017. For additional information, see 
SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Sharron Levine, Director, Office of 
Minority and Women Inclusion, [email protected], (202) 649-3496; 
or Eric Howard, Deputy Director, Office of Minority and Women 
Inclusion, [email protected], (202) 649-3009; or James Jordan, 
Assistant General Counsel, [email protected], (202) 649-3075 (not 
toll-free numbers), Federal Housing Finance Agency, 400 Seventh Street 
SW., Washington, DC 20219. The telephone number for the 
Telecommunications Device for the Hearing Impaired is (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

A. HERA and FIRREA (July 2008)

    In 2008, the Housing and Economic Recovery Act (HERA) \1\ amended 
the Safety and Soundness Act to require FHFA to ``take affirmative 
steps to seek diversity in its workforce, at all levels of the agency, 
consistent with the demographic diversity of the United States.'' \2\
---------------------------------------------------------------------------

    \1\ Public Law 110-289, 122 Stat. 2654 (2008).
    \2\ Public Law 110-289, div. A, title I, sec. 1116(f), 122 Stat. 
2681. 12 U.S.C. 4520(f).
---------------------------------------------------------------------------

    HERA also amended FIRREA \3\ to add FHFA to a list of agencies 
required to ``prescribe regulations to establish and oversee a minority 
outreach program within [the agency] to ensure inclusion, to the 
maximum extent possible, of minorities and women, and entities owned by 
minorities and women, including financial institutions, investment 
banking firms, underwriters, accountants, and providers of legal 
services, in all contracts entered into by the agency with such persons 
or entities, public and private, in order to manage the institutions 
and their assets for which the agency is responsible or to perform such 
other functions authorized under any law applicable to such agency.'' 
\4\
---------------------------------------------------------------------------

    \3\ Public Law 101-73, 103 Stat. 183 (1989).
    \4\ Public Law 110-289, div. A, title II, sec 1216(c), 122 Stat. 
2792. 12 U.S.C. 1833e(c).
---------------------------------------------------------------------------

B. Subpart B of 2010 NPR (March 2010)

    In January 2010, FHFA published a Notice of Proposed Rulemaking on 
Minority and Women Inclusion (2010 NPRM) \5\ to implement HERA's MWI 
mandates. The 2010 NPRM Subparts A and C addressed the establishment 
and supervision of Office[s] of Minority and Women Inclusion (OMWIs) at 
the Federal National Mortgage Association (Fannie Mae), the Federal 
Home Loan Corporation (Freddie Mac), and the Federal Home Loan Banks 
(FHLBs) (collectively, ``FHFA's regulated entities''), as well as, the 
Federal Home Loan Banks' Office of Finance.
---------------------------------------------------------------------------

    \5\ ``Minority and Women Inclusion; Notice of Proposed 
Rulemaking,'' 75 FR 1289 (January 11, 2010).
---------------------------------------------------------------------------

    The 2010 NPRM Subpart B addressed internal operations. Subpart B: 
(1) Outlined affirmative steps FHFA would take to promote diversity in 
its own workforce (as required by the HERA amendments to the Safety and 
Soundness Act); and (2) Established an FHFA outreach program regulation 
(as required by the HERA amendments to FIRREA).

C. Dodd-Frank Act, 2010 Final Rule (July 2010-December 2010)

    On July 21, 2010, after FHFA published the 2010 NPRM, but before 
the rule was finalized, Dodd-Frank Act \6\ was enacted. Dodd-Frank Act 
section 342 required FHFA and several other agencies to ``develop 
[internal] standards'' that address equal employment opportunity (EEO) 
and increased participation of minority-owned and women-owned business 
in the programs and contracts of the respective agency.\7\
---------------------------------------------------------------------------

    \6\ Public Law 111-203, 124 Stat. 1376 (2010).
    \7\ The Dodd-Frank Act imposed MWI requirements on the internal 
operations of the following agencies and entities: The Consumer 
Financial Protection Bureau (CFPB), Federal Deposit Insurance 
Corporation (FDIC), FHFA, Federal Reserve Board (FRB), each of the 
Federal Reserve Banks, National Credit Union Administration (NCUA), 
Office of the Comptroller of the Currency (OCC), Securities and 
Exchange Commission (SEC), and the Department of Treasury.
---------------------------------------------------------------------------

    FHFA was specially situated. As the only agency subject to HERA's 
Minority and Women Inclusion (MWI) requirements, FHFA already had 
published the 2010 NPRM Subpart B which, if adopted, would have 
fulfilled both its obligations under HERA, and, the newly established 
Dodd-Frank Act section 342.
---------------------------------------------------------------------------

    \7\ 12 U.S.C. 5452.
---------------------------------------------------------------------------

    However, in December 2010, FHFA finalized its 2010 NPRM without 
adopting proposed Subpart B.\8\ In the preamble to the 2010 Final Rule, 
FHFA committed to finalize Subpart B, but not until the other agencies 
subject to Dodd-Frank Act section 342 began work on implementation, and 
FHFA ensured that its proposal aligned with the other agencies' 
practices.
---------------------------------------------------------------------------

    \8\ ``Minority and Women Inclusion; Final Rule,'' 75 FR 81395 
(December 28, 2010) (codified at 12 CFR 1207).
---------------------------------------------------------------------------

    The other agencies subsequently established their respective OMWIs, 
and, along with FHFA's OMWI, implemented Dodd-Frank Act section 342. 
FHFA drafted internal EEO standards in August, 2016. However, FHFA did 
not adopt the standards in a formal rulemaking, nor did FHFA fulfill 
the promise in its 2010 Final Rule to revisit and finalize Subpart B.

D. FIRREA Requirement To Prescribe Regulations (Current State)

    The Federal Deposit Insurance Corporation (FDIC), FHFA, and Office 
of the Comptroller of the Currency (OCC) hold a special status among 
the agencies subject to Dodd-Frank Act section 342. The FDIC, FHFA, and 
OCC are the only agencies also subject to the FIRREA section 1216 (12 
U.S.C. 1833e) requirement to ``prescribe regulations'' to establish a 
minority outreach program (the other agencies subject to Dodd-Frank Act 
section 342 simply were required to develop and implement the less 
formal ``standards'' referenced above). The FDIC and OCC were the 
original subjects of FIRREA section 1216's (12 U.S.C. 1833e) regulation 
requirement when FIRREA was enacted in 1989. Accordingly, both agencies

[[Page 14993]]

published regulations establishing minority outreach programs prior to 
HERA, thus leaving FHFA as the only agency yet to fulfill the FIRREA 
mandate section 1216 (12 U.S.C. 1833e).9 10
---------------------------------------------------------------------------

    \9\ FDIC Minority and Outreach Program--Contracting, 12 CFR part 
361, and OCC Description of Office, Procedures, Public Information; 
Minority, Women and Individuals with Disabilities-Owned Business; 
Contracting Outreach Program, 12 CFR part 4, subpart D.
    \10\ Since HERA's enactment, the FDIC made a technical amendment 
to its existing rule by changing the name of the office that 
oversees the FDIC's outreach program from the ``Office of Diversity 
and Economic Opportunity (ODEO)'' to the ``Office of Minority and 
Women Inclusion (OMWI).'' The OCC made no changes to its existing 
regulation.
---------------------------------------------------------------------------

II. Final Rule

    Administratively, the final rule: (a) Fulfills FHFA's obligation to 
``prescribe regulations'' establishing an outreach program in 
accordance with FIRREA, thereby aligning FHFA's regulations with the 
FDIC and OCC's existing regulations; (b) formalizes FHFA's commitment 
to EEO by rule; and (c) fulfills FHFA's commitment in the final rule to 
revisit and finalize the substance of proposed Subpart B.
    The final rule also demonstrates FHFA's commitment to diversity and 
inclusion and provides a baseline for implementing diversity and 
inclusion throughout every level of the agency.
    The final rule is modeled on the existing FDIC Minority and Women 
Outreach Program rule (FDIC Rule) \11\ which is similar in substance to 
the OCC's Minority, Women, and Individuals with Disabilities-Owned 
Business Contracting Outreach Program rule (OCC Rule).\12\ The FDIC 
drafted its original rule in 1990 and amended it multiple times to 
conform the rule to Supreme Court decisions on affirmative action that 
bore upon the rule's substance. FHFA drew heavily on the work done by 
the FDIC.
---------------------------------------------------------------------------

    \11\ FDIC Minority and Women Outreach Program, 12 CFR part 361.
    \12\ OCC Description of Office, Procedures, Public Information; 
Minority, Women and Individuals with Disabilities-Owned Business; 
Contracting Outreach Program, 12 CFR part 4, subpart D.
---------------------------------------------------------------------------

A. Final Rule and the Administrative Procedure Act (APA)

    In the preamble to the 2010 Final Rule, FHFA noted that it reserved 
Subpart B of its broader Minority and Women Inclusion Rule to address 
the MWI-related statutory requirements aimed at FHFA's internal 
policies. Since then, the 2010 Final Rule has evolved,\13\ and FHFA has 
concluded that, as an administrative matter, a new regulation under 
subchapter A of FHFA's regulations is necessary for the internally 
applied requirements. FHFA determined that separating FHFA's internal 
requirements from the requirements that the 2010 Final Rule imposes 
upon FHFA's regulated entities would be more orderly than an amendment 
to the existing Minority and Women Inclusion regulation.
---------------------------------------------------------------------------

    \13\ The 2010 Final Rule was amended to add regulated entity 
board diversity requirements, 80 FR 25209 (May 4, 2015), and a 
Notice of Proposed Rulemaking is currently out for comment to amend 
the 2010 Final Rule again to require FHFA's regulated entities to 
engage in diversity and inclusion strategic planning, 81 FR 74730 
(October 27, 2016).
---------------------------------------------------------------------------

    This final rule also redesignates the current MWI regulation as 
part 1223 of title 12 of the Code of Federal Regulations and the new 
MWOP regulation as part 1207 in order to keep all FHFA regulations 
related to FHFA's Organization & Operations in subchapter A, and those 
regulations related to Regulated Entities in subchapter B. There are no 
substantive changes to the MWI regulation. Thus, the newly designated 
part 1207 renders the reserved portion of former subpart B for the MWOP 
rule unnecessary, however FHFA continues to reserve this subpart for 
future rulemakings.
    Under the APA, prior notice and comment periods are not required if 
a rule relates to ``a matter of agency management or personnel or to 
public property, loans, grants, benefits, or contracts.'' Therefore, 
this final rule is effective upon publication in the Federal Register.

III. Section-by-Section Analysis

Definitions (Sec.  1207.1)

    This establishes that the terms used in the final rule have the 
same meaning as in FHFA's Minority and Women Inclusion Regulation at 12 
CFR part 1223.

FHFA Workforce Diversity; Equal Employment Opportunity Program (Sec.  
1207.2)

    Section 1207.2(b) states that FHFA will comply with EEOC 
requirements for Federal agencies. The purpose of that explicit 
statement is to memorialize FHFA's fulfillment of Dodd-Frank Act's 
section 342 requirement to ``establish standards'' in a formal 
rulemaking (FHFA has already drafted standards internally, and, in 
practice, FHFA already meets the EEOC's requirements).
    Section 1207.2(c) states FHFA's policy on non-discrimination. The 
language in that subsection incorporates provisions from a series of 
EEO-related Executive Orders (E.O.s) that already applied to FHFA by 
statute. Restating the provisions explicitly in this subsection 
confirms for the reader that FHFA conforms to these specific E.O.s.
    Section 1207.2(d) lists the ``affirmative steps'' FHFA will take to 
promote diversity in hiring, including recruiting at institutions that 
serve primarily minorities or women, and, placing advertisements in 
media oriented toward minorities and women. The language in this 
subsection is drawn from HERA.\14\
---------------------------------------------------------------------------

    \14\ Public Law 110-289, sec. 1124(f).
---------------------------------------------------------------------------

FHFA Contracting and Diversity and Inclusion (Sec.  1207.3)

    Section 1207.3(a) states that FHFA's OMWI has overall 
responsibility for diversity and inclusion in FHFA contracting.
    Dodd-Frank Act's section 342 requires that FHFA develop standards 
for technical assistance, but there is no statutory requirement that 
FHFA prescribe a regulation committing to provide technical assistance. 
FHFA nevertheless included this provision in Sec.  1207.3(c) of the 
final rule to demonstrate FHFA's commitment to diversity and inclusion 
and because including this provision in the final rule provides a 
central point of reference for potential FHFA vendors.
    Section 1207.3(b) begins with a statement that FHFA's policy is to 
promote diversity in the contracting process. The subsection then 
provides a non-exclusive list of activities FHFA may engage in to 
promote diversity, including participating in conventions intended to 
promote business opportunities for minority- and women-owned 
businesses. Like the technical assistance provision, the list of 
potential activities is extracted from Dodd-Frank Act section 342.
    Section 1207.3(d) provides that FHFA's OMWI will monitor that FHFA 
staff interfacing with the contracting community are actively promoting 
FHFA's Outreach Program. FDIC's OMWI established this same construct 
for the FDIC rule and Outreach Program with reported success.

Limitations (Sec.  1207.4)

    This section establishes that the final rule does not create any 
right or benefit for any party against the United States, its 
departments, agencies, or entities, its officers, employees, or agents. 
This section forecloses any theory that the final rule subjects FHFA to 
any new legal liability.

[[Page 14994]]

IV. Consideration of Differences Between the Banks and the Enterprises

    Section 1313(f) of the Safety and Soundness Act, as amended by 
section 1201 of HERA, requires the Director, when promulgating 
regulations relating to the Banks, to consider the differences between 
the Banks and the Enterprises with respect to the Banks' cooperative 
ownership structure; mission of providing liquidity to members; 
affordable housing and community development mission; capital 
structure; and joint and several liability. In preparing this final 
rule, the Director considered the differences between the Banks and the 
Enterprises with respect to the final rule's impact and the differences 
outlined in section 1313(f) and determined that the final rule would 
not adversely impact the FHLBanks or Enterprises.

V. Paperwork Reduction Act

    The final rule does not contain any collection of information 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). Therefore, FHFA has not submitted any information to the Office 
of Management and Budget for review.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, including small businesses and or small 
organizations, must include an initial regulatory flexibility analysis 
describing the regulation's impact on small entities. Such an analysis 
need not be undertaken if the agency has certified that the regulation 
will not have a significant economic impact on a substantial number of 
small entities. FHFA has considered the impact of the proposed rule 
under the Regulatory Flexibility Act. The General Counsel of FHFA 
certifies that the final rule, is not likely to have a significant 
economic impact on a substantial number of small entities, because the 
regulation merely fulfills statutory requirements that FHFA: (1) 
``develop standards'' that apply internally; and (2) ``prescribe[s] 
regulations'' establishing FHFA's own outreach program.

List of Subjects

12 CFR Part 1207

    Discrimination, Diversity, Equal employment opportunity, Government 
contracts, Minority businesses, Outreach.

12 CFR Part 1223

    Discrimination, Diversity, Equal employment opportunity, Government 
contracts, Minority businesses, Outreach.

Authority and Issuance

    Accordingly, for the reasons stated in the SUPPLEMENTARY 
INFORMATION, and under the authority of 12 U.S.C. 4520 and 4526, 12 
U.S.C. 1833e, and E.O. 11478, FHFA is amending subchapters A and B of 
chapter XII of title 12, Code of Federal Regulations as follows:

PART 1207--MINORITY AND WOMEN INCLUSION

0
1. The authority citation for part 1207 continues to read as follows:

    Authority: 12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478.

PART 1207--[REDESIGNATED AS PART 1223]

0
2. Redesignate part 1207 as part 1223 and transfer to subchapter B.

PART 1223--MINORITY AND WOMEN INCLUSION

Subpart B--[Removed and Reserved]

0
3. Remove and reserve subpart B (consisting of Sec. Sec.  1223.10-
1223.19).

0
4. Add new part 1207 to subchapter A to read as follows:

PART 1207--MINORITY AND WOMEN OUTREACH PROGRAM

Sec.
1207.1 Definitions.
1207.2 FHFA workforce diversity; Equal Employment Opportunity 
Program.
1207.3 FHFA contracting and diversity and inclusion.
1207.4 Limitations.

    Authority: 12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478.


Sec.  1207.1  Definitions.

    The terms in this part have the same meaning as in FHFA's Minority 
and Women Inclusion Regulation at part 1223 of this chapter, as may be 
amended from time to time.


Sec.  1207.2  FHFA workforce diversity; Equal Employment Opportunity 
Program.

    (a) Responsibility. FHFA's Office of Minority and Women Inclusion 
(OMWI) shall have overall responsibility for diversity and inclusion in 
FHFA's employment practices.
    (b) General. FHFA shall maintain an Equal Employment Opportunity 
(EEO) program consistent with the Equal Employment Opportunity 
Commission requirements for Federal agencies and Executive Order 11478.
    (c) Workforce diversity. FHFA shall not discriminate in employment 
against any person because of race, color, religion, national origin, 
sex, age, genetic information, disability, sexual orientation, gender 
identity, or status as a parent.
    (d) Affirmative steps for workforce diversity. FHFA shall take 
affirmative steps to seek diversity in its workforce, at all levels of 
the agency, in a manner consistent with applicable law. Such steps 
shall include:
    (1) Recruiting at historically Black colleges and universities, 
Hispanic-serving institutions, women's colleges, and colleges that 
typically serve the individuals with disabilities and majority minority 
populations;
    (2) Sponsoring and recruiting at job fairs in urban communities;
    (3) Placing employment advertisements in media oriented toward 
minorities and women;
    (4) Partnering with organizations that are focused on developing 
opportunities for minorities and women to place talented minorities and 
women in industry internships, summer employment, and full-time 
positions; and
    (5) Where feasible, partnering with inner-city high schools, girls' 
high schools, and high schools with majority minority populations, to 
establish or enhance financial literacy and provide mentoring.


Sec.  1207.3   FHFA contracting and diversity and inclusion.

    (a) Responsibilities. FHFA's Office of Minority and Women Inclusion 
(OMWI) shall have responsibility for diversity and inclusion in FHFA's 
contracting practices.
    (b) Outreach. FHFA's policy is to promote diversity in its 
contracting process. FHFA shall establish a contractor outreach program 
intended to ensure that minority- and women-owned businesses are made 
aware of and given the opportunity to compete for contracts with FHFA. 
FHFA shall conduct outreach activities that may include, but are not 
limited to:
    (1) Identifying contractors that are minority- and women-owned by 
obtaining lists and directories maintained by government agencies, 
trade groups, and other organizations;
    (2) Advertising contract opportunities through media targeted to 
reach potential contractors that are minority- and women-owned; and
    (3) Participating in events such as conventions, trade shows, 
seminars, professional meetings, and other

[[Page 14995]]

gatherings intended to promote business opportunities for minority- and 
women-owned businesses.
    (c) Technical assistance. FHFA shall provide technical assistance 
and guidance to facilitate the identification and solicitation of 
minority and women-owned businesses.
    (d) Monitoring. FHFA's OMWI shall monitor that FHFA staff 
interfacing with the contracting community are knowledgeable about, and 
actively promoting, FHFA's Outreach program.


Sec.  1207.4   Limitations.

    The regulations in this part do not, are not intended to, and 
should not be construed to create any right or benefit, substantive or 
procedural, enforceable at law, in equity, or through administrative 
proceeding, by any party against FHFA, the United States, its other 
departments, agencies, or entities, its officers, employees, or agents.

     Dated: March 20, 2017.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2017-05894 Filed 3-23-17; 8:45 am]
 BILLING CODE 8070-01-P